ABA ethics commission takes on issue of foreign in-house counsel

Several proposals that would allow foreign lawyers to more easily register as in-house counsel will go before the American Bar Association (ABA) at its annual February midyear meeting.

The four measures, which will be introduced by the ABA’s Commission on Ethics 20/20, would permit overseas in-house counsel to handle certain domestic legal matters, and would give judges guidelines on allowing foreign lawyers into court in some cases.

The resolutions would prevent foreign attorneys from advising clients on domestic laws without input from a U.S. lawyer licensed to practice in the appropriate jurisdiction.

Supporters of the measures, such as Michael Traynor, co-chair of the ethics commission, say that they would help to increase oversight of the foreign-trained lawyers who are already operating as in-house attorneys in the U.S. He also says that the ethics commission has not found any evidence that the current presence of foreign attorneys practicing in the U.S. has led to any problems.

But those who oppose the proposals say that lawyers who are inexperienced in U.S. law could make errors or misunderstand relevant laws. "Even the lawyers who have a good education engage in malpractice every day," Larry Fox, former chair of the ABA Standing Committee on Ethics and Professional Responsibility, told Thomson Reuters. "Why should we add to the malpractice by adding to our profession people who by definition don't have an education in these matters?"

The ABA isn’t the only organization to take up the issue of registering overseas attorneys. Texas, a state that has relatively harsh restrictions on foreign lawyers sitting for its bar exam, may become more open to those lawyers if the Texas Supreme Court approves a proposal doing away with work visa and foreign legal experience requirements for taking the bar.